Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

05 August 2013

"Boobies" Are Not Inherently Lewd or Obscene

...although it took over one hundred pages for the Third Circuit — in a split opinion — to reach that perhaps overobvious conclusion.

In the misleadingly-titled B.H. v. Easton [PA] Area School Dist., No. [20]112067 (en banc)(PDF) (3d Cir. 05 Aug 2013), nine of the fourteen active judges on the United States Court of Appeals for the Third Circuit held that a bracelet reading

I ♥ boobies! (KEEP A BREAST)

does not so seriously threaten the cultural and instructional environment at a Pennsylvania middle school, nor pose a significant threat that it will "substantially disrupt the school," that it justifies advance censorship by the school district. The court held that:

If speech posing such a “grave” and “unique threat to the physical safety of students” can be categorically regulated only when it cannot “plausibly be interpreted as commenting on any political or social issue”—and that regulation nonetheless “stand[s] at the far reaches of what the First Amendment permits”—then there is no reason why ambiguously lewd speech should receive any less protection when it also “can plausibly be interpreted as commenting on any political or social issue.” One need not be a philosopher of Mill or Feinberg’s stature to recognize that harmful speech posing an “immediately obvious” threat to the “physical safety of students” presents a far graver threat to the educational mission of schools—thereby warranting less protection—than ambiguously lewd speech that might undercut teaching “the appropriate form of civil discourse” to students. It would make no sense to afford a T-shirt exclaiming “I ♥ pot! (LEGALIZE IT)” protection while declaring that a bracelet saying “I ♥ boobies! (KEEP A BREAST)” is unprotected.

Slip op. at 4647 (citations and footnote omitted).

My own opinion would have been much shorter, and would explicitly have drawn in the political background concerning female parts in Pennsylvania and New York as judicially-noticed fact demonstrating that the bracelet is inherently a matter of political speech on a matter of public concern, and suggesting that the United States Attorney investigate the school officials for sex discrimination in violation of Title IX. But then, I'm not a fan of old white men making all of the policy decisions concerning young women in the first place... even if demographically, I'm getting perilously close to that description myself ("old white men," not "young women").

The amazing bit, though, is the dissent, which reflects a rather ahistorical view of "political", "speech", "public concern", and basic biology that would have been more at home during the heyday of the Comstock Act.

Notwithstanding the facts supporting Plaintiffs' case, I conclude that "I ♥ boobies!" can reasonably be interpreted as inappropriate sexual double entendre. In the middle school context, the phrase can mean both "I support breast-cancer awareness measures" and "I am attracted to female breasts." Many twelve- and thirteen-year-old children are susceptible to juvenile sexualization of messages that would be innocuous to a reasonable adult. Indeed, at least one bracelet wearer acknowledged that "immature" boys might read a lewd meaning into the bracelets and conceded that she understood why the school might want to ban the bracelets, and other students parroted the phrase on the bracelets while conveying sexual attraction to breasts. Another school administrator has concluded that the bracelets at issue here "elicit attention by sexualizing the cause of breast cancer awareness." And as Judge Crabb, the only other federal judge to consider these bracelets, put it, "hints of vulgarity and sexuality" in the bracelets "attract attention and provoke conversation, a ploy that is effective for [KABF‘s] target audience of immature middle [school] students." Finally, as the Gender Equality amicus brief points out, breasts are ubiquitously sexualized in American culture.

Slip op. at 99–100 (Hardiman, J., dissenting) (citations omitted, boldface emphasis added). That is, because some other people who are not "like" the plaintiffs might consider these bracelets lewd, obscene, and referential to body parts of women that polite twelve-year-old boys don't talk about, the school district was justified in suppressing political speech on a matter of general public concern. After all, that some students "are susceptible to juvenile sexualization of messages that would be innocuous to a reasonable adult" does not imply the converse. Riiiiiiight.

The dissent tries to cloak itself in concern that any opinion in favor of greater speech rights for students will run counter to the murky trend and possibly to strained interpretations of precedent. This is fundamentally inconsistent with a judge's primary duty: To decide. If precedent were always clear, we wouldn't need judges in the first place — administrative referees could just determine what the facts were and apply the clear precedents. The corollary of having a duty to decide is that sometimes one will be second-guessed and considered "wrong," for some value of "wrong"... such as Justice Harlan being "wrong" in his dissent in Plessy. The rhetorical strategy behind the dissent in B.H. presumes that judges can — indeed, should — avoid deciding, under the assumption that means never being wrong. That's how Plessy, and for that matter Dred Scott, stayed on the books as clear precedent for so long.

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